< Back to S. 2234 (112th Congress, 2011–2013)

Text of the End Trafficking in Government Contracting Act of 2012

This bill was introduced on June 29, 2012, in a previous session of Congress, but was not enacted. The text of the bill below is as of Mar 26, 2012 (Introduced).

This is not the latest text of this bill.

Download PDF

Source: GPO

II

112th CONGRESS

2d Session

S. 2234

IN THE SENATE OF THE UNITED STATES

March 26, 2012

(for himself, Mr. Portman, Mr. Franken, Mr. Rubio, Ms. Collins, Mr. Lieberman, and Mrs. McCaskill) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL

To prevent human trafficking in government contracting.

1.

Short title

This Act may be cited as the End Trafficking in Government Contracting Act of 2012.

2.

Definitions

In this Act:

(1)

Executive agency

The term executive agency has the meaning given the term in section 133 of title 41, United States Code.

(2)

Subcontractor

The term subcontractor means a recipient of a contract at any tier under a grant, contract, or cooperative agreement.

(3)

Subgrantee

The term subgrantee means a recipient of a grant at any tier under a grant or cooperative agreement.

(4)

United States

The term United States has the meaning provided in section 103(12) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102(12)).

3.

Contracting requirements

Section 106(g) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7104(g)) is amended by striking if the grantee or any subgrantee, and all that follows through the period at the end and inserting the following: “or take any of the other remedial actions authorized under section 5(c) of the End Trafficking in Government Contracting Act of 2012, if the grantee or any subgrantee, or the contractor or any subcontractor, engages in, or uses labor recruiters, brokers, or other agents who engage in—

(i)

severe forms of trafficking in persons;

(ii)

the procurement of a commercial sex act during the period of time that the grant, contract, or cooperative agreement is in effect;

(iii)

the use of forced labor in the performance of the grant, contract, or cooperative agreement, or

(iv)

acts that directly support or advance trafficking in persons, including the following acts:

(I)

Destroying, concealing, removing, or confiscating an employee’s immigration documents without the employee’s consent.

(II)

Failing to repatriate an employee upon the end of employment, unless—

(aa)

exempted from the duty to repatriate by the Federal department or agency providing or entering into the grant, contract, or cooperative agreement; or

(bb)

the employee is a victim of human trafficking seeking victim services or legal redress in the country of employment or a witness in a human trafficking enforcement action.

(III)

Soliciting a person for the purpose of employment, or offering employment, by means of materially false or fraudulent pretenses, representations, or promises regarding that employment.

(IV)

Charging recruited employees exorbitant placement fees, including fees equal to or greater than the employee’s monthly salary, or recruitment fees that violate the laws of the country from which an employee is recruited.

(V)

Providing inhumane living conditions.

.

4.

Compliance plan and certification requirement

(a)

Requirement

The head of an executive agency may not provide or enter into a grant, contract, or cooperative agreement valued at $1,000,000 or more if performance will predominantly be conducted overseas, unless a duly designated representative of the recipient of such grant, contract, or cooperative agreement certifies to the contracting or grant officer prior to receiving an award and on an annual basis thereafter, after having conducted due diligence, that—

(1)

the recipient has implemented a plan to prevent the activities described in section 106(g) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as amended by section 3, and is in compliance with that plan;

(2)

the recipient has implemented procedures to prevent any activities described in such section 106(g) and to monitor, detect, and terminate any subcontractor, subgrantee, or employee of the recipient found to be engaged in any activities described in such section; and

(3)

to the best of the representative’s knowledge, neither the recipient, nor any subcontractor or subgrantee of the recipient or any agent of the recipient or of such a subcontractor or subgrantee, is engaged in any of the activities described in such section.

(b)

Limitation

Any plan or procedures implemented pursuant to subsection (a) shall be appropriate to the size and complexity of the grant, contract, or cooperative agreement and to the nature and scope of its activities, including the number of non-United States citizens expected to be employed.

(c)

Disclosure

The recipient shall provide a copy of the plan to the contracting or grant officer upon request, and as appropriate, shall post the useful and relevant contents of the plan or related materials on its website and at the workplace.

(d)

Performance predominately overseas

For purposes of subsection (a), a grant, contract, or cooperative agreement shall be considered to be performed predominantly overseas if the estimated value of the services required to be performed under the grant, contract, or cooperative agreement outside the United States exceeds $500,000.

5.

Monitoring and investigation of trafficking in persons

(a)

Investigation

If the contracting or grant officer of an executive agency for a grant, contract, or cooperative agreement receives credible evidence that a recipient of the grant, contract, or cooperative agreement; any subgrantee or subcontractor of the recipient; or any agent of the recipient or of such a subgrantee or subcontractor, has engaged in an activity described in section 106(g) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as amended by section 3, including a report from a contracting officer representative, an inspector general, an auditor, an alleged victim or victim’s representative, or any other credible source, the contracting or grant officer shall, before exercising any option to renew such grant, contract, or cooperative agreement, request that the agency’s Office of Inspector General immediately initiate an investigation of the allegation or allegations contained in the report. If the agency’s Office of Inspector General is unable to conduct a timely investigation, the suspension and debarment office or another investigative unit of the agency shall conduct the investigation.

(b)

Report

Upon completion of an investigation under subsection (a), the office or unit that conducted the investigation shall submit to the contracting or grant officer and, if such investigation was not conducted by the agency’s Office of Inspector General, to the agency’s Office of Inspector General, a report on the investigation, including conclusions about whether credible evidence exists that the recipient of a grant, contract, or cooperative agreement; any subcontractor or subgrantee of the recipient; or any agent of the recipient or of such a subcontractor or subgrantee, engaged in any of the activities described in section 106(g) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as amended by section 3.

(c)

Remedial actions

(1)

In general

If a contracting or grant official determines that a recipient of a grant, contract, or cooperative agreement, or any subcontractor or subgrantee of the recipient, has engaged in any of the activities described in such section 106(g), the contracting or grant officer shall consider taking one or more of the following remedial actions:

(A)

Requiring the recipient to remove an employee from the performance of work under the grant, contract, or cooperative agreement.

(B)

Requiring the recipient to terminate a subcontract or subgrant.

(C)

Suspending payments under the grant, contract, or cooperative agreement.

(D)

Withholding award fees, consistent with the award fee plan, for the performance period in which the agency determined the contractor or subcontractor engaged in any of the activities described in such section 106(g).

(E)

Declining to exercise available options under the contract.

(F)

Terminating the contract for default or cause, in accordance with the termination clause for the contract.

(G)

Referring the matter to the agency suspension and debarment official.

(H)

Referring the matter to the Department of Justice for prosecution under any applicable law.

(2)

Savings clause

Nothing in this subsection shall be construed as limiting the scope of applicable remedies available to the Federal Government.

(3)

Mitigating factor

Where applicable, the contracting or grant official may consider whether the contractor or grantee had a plan in place under section 4, and was in compliance with that plan at the time of the violation, as a mitigating factor in determining which remedies, if any, should apply.

(d)

Inclusion of report conclusions in FAPIIS

The contracting or grant officer shall ensure that relevant findings contained in the report under subsection (b) are included in the Federal Awardee Performance and Integrity Information System (FAPIIS). These findings shall be considered relevant past performance data for the purpose of awarding future contracts, grants, or cooperative agreements.

6.

Notification to inspectors general and cooperation with Government

The head of an executive agency making or awarding a grant, contract, or cooperative agreement shall require that the recipient of the grant, contract, or cooperative agreement—

(1)

immediately inform the Inspector General of the executive agency of any information it receives from any source that alleges credible evidence that the recipient; any subcontractor or subgrantee of the recipient; or any agent of the recipient or of such a subcontractor or subgrantee, has engaged in conduct described in section 106(g) of the Trafficking in Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as amended by section 3 of this Act; and

(2)

fully cooperate with any Federal agencies responsible for audits, investigations, or corrective actions relating to trafficking in persons.

7.

Expansion of fraud in foreign labor contracting to include work outside the United States

Section 1351 of title 18, United States Code, is amended—

(1)

by striking Whoever knowingly and inserting (a) Work Inside the United States.—Whoever knowingly; and

(2)

by adding at the end the following new subsection:

(b)

Work outside the United States

Whoever knowingly and with intent to defraud recruits, solicits, or hires a person outside the United States or causes another person to recruit, solicit, or hire a person outside the United States, or attempts to do so, for purposes of work performed on a United States Government contract performed outside the United States, or on a United States military installation or mission or other property or premises owned or controlled by the United States Government, by means of materially false or fraudulent pretenses, representations, or promises regarding that employment, shall be fined under this title or imprisoned for not more than 5 years, or both.

.

8.

Improving Department of Defense accountability for reporting trafficking in persons claims and violations

Section 105(d)(7)(H) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7103(d)(7)(H)) is amended—

(1)

in clause (ii), by striking and at the end;

(2)

by redesignating clause (iii) as clause (iv);

(3)

by inserting after clause (ii) the following new clause:

(iii)

all known trafficking in persons cases reported to the Under Secretary of Defense for Personnel and Readiness;

;

(4)

in clause (iv), as redesignated by paragraph (2), by inserting and at the end after the semicolon; and

(5)

by adding at the end the following new clause:

(v)

all trafficking in persons activities of contractors reported to the Under Secretary of Defense for Acquisition, Technology, and Logistics;

.

9.

Rule of construction

Excluding section 7, nothing in this Act shall be construed to supersede, enlarge, or diminish the common law or statutory liabilities of any grantee, subgrantee, contractor, subcontractor, or other party covered by section 106(g) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as amended by section 3.